State v. Ruocco

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STATE v. RUOCCO—DISSENT
ESPINOSA, J., with whom ROBINSON, J., joins, dis-
senting. I respectfully disagree with the decision of the
majority to affirm the judgment of the Appellate Court,
which reversed the judgment of conviction of the defen-
dant, Dustin Ruocco, on the ground that the trial court
committed plain error by failing to instruct the jury, as
mandated by General Statutes § 54-84 (b),1 that it may
draw no unfavorable inferences from the defendant’s
failure to testify at his trial on charges of burglary in
the third degree and larceny in the third degree. State
v. Ruocco, 151 Conn. App. 732, 738–39, 95 A.3d 573
(2014). Specifically, I would overrule the Appellate
Court’s decision in State v. Suplicki, 33 Conn. App. 126,
130–31, 634 A.2d 1179 (1993), cert. denied, 229 Conn.
920, 642 A.2d 1216 (1994), which held that the complete
failure to provide the instruction required by § 54-84
(b) is per se plain error that requires reversal. I further
conclude that the trial court’s failure to instruct under
§ 54-84 (b) was harmless error, meaning that the record
fails to reveal the manifest injustice necessary for plain
error reversal. Because I would reverse the judgment
of the Appellate Court, I respectfully dissent.
I
I begin with the state’s claim, not reached by the
majority, that the Appellate Court improperly con-
cluded that a new trial is required when there is a
complete failure by the trial court to provide the instruc-
tion mandated by § 54-84 (b).2 The state argues that the
Appellate Court’s decision in State v. Suplicki, supra,
33 Conn. App. 130–31, which was controlling on this
point,3 is wrongly decided because it improperly
equated ‘‘plain error’’ with ‘‘structural error’’ in
determining that the constitutional nature of the right
protected by § 54-84 (b) requires a new trial in all cases.
The state contends that requiring reversal without con-
sidering whether the failure to instruct was harmful is
inconsistent with both: (1) the two-pronged test govern-
ing the plain error doctrine, which requires an assess-
ment of whether the record demonstrates the presence
of ‘‘manifest injustice’’; and (2) the prevailing body of
case law holding that trial courts’ failures to provide
‘‘no adverse inference’’ instructions under Carter v.
Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d
241 (1981), are amenable to harmless error review. In
response, the defendant contends that the ‘‘stringent
instructional language’’ of § 54-84 (b) represents a legis-
lative judgment that ‘‘the mandated instruction is an
unquantifiable impropriety that casts doubt on the fair-
ness of the entire trial,’’ and that the manifest injustice
prong of the plain error test ‘‘is simply met per se under
the statute whenever omission is total as opposed to
partial.’’ Relying on State v. Burke, 182 Conn. 330, 438
A.2d 93 (1980), and dicta from this court’s decision in
State v. Sinclair, 197 Conn. 574, 586, 500 A.2d 539
(1985), the defendant contends that Suplicki remains
good law. I agree, however, with the state, and conclude
that failure to provide the no adverse inference instruc-
tion mandated by § 54-84 (b) does not require reversal
in the absence of manifest injustice in the form of consti-
tutional harm resulting from the infringement of the
defendant’s fifth amendment privilege against self-
incrimination.
Determination of a remedy for a statutory violation
presents a question of statutory interpretation over
which our review is plenary. See Ulbrich v. Groth, 310
Conn. 375, 448, 78 A.3d 76 (2013); cf. State v. Heredia,
310 Conn. 742, 754–57, 81 A.3d 1163 (2013) (deciding
as question of statutory interpretation whether Practice
Book § 37-12 [a] requires release of defendant when
probable cause determination not made within forty-
eight hours of arrest). It is well settled that we interpret
statutes in accordance with the plain meaning rule set
forth in General Statutes § 1-2z. See, e.g., State v. Here-
dia, supra, 756–57.
The statutory language at issue in this appeal provides
in relevant part: ‘‘Unless the accused requests other-
wise, the court shall instruct the jury that they may draw
no unfavorable inferences from the accused’s failure to
testify. . . .’’ General Statutes § 54-84 (b). The statute,
however, does not set forth a specific appellate remedy
for a trial court’s complete failure to give the mandatory
‘‘no adverse inference’’ instruction, and, in particular,
whether a trial court’s failure to administer the pre-
scribed instruction requires reversal in all cases. In
‘‘interpreting [statutory] language . . . we do not write
on a clean slate, but are bound by our previous judicial
interpretations of this language and the purpose of the
statute.’’ (Internal quotation marks omitted.) Commis-
sioner of Public Safety v. Freedom of Information Com-
mission, 312 Conn. 513, 527, 93 A.3d 1142 (2014). Thus,
I turn first to prior judicial interpretations of § 54-84
(b), in particular, the Appellate Court’s controlling deci-
sion on this point in State v. Suplicki, supra, 33 Conn.
App. 126. See footnote 3 of this dissenting opinion.
Observing that this court had left the question open in
State v. Sinclair, supra, 197 Conn. 585–86, the Appellate
Court held in Suplicki ‘‘that the total omission of the
‘no adverse inference’ instruction is plain error that is
not subject to a harmless error analysis. The uncondi-
tional language of the statute is a legislative mandate
and the failure to use that language is a pivotal aspect
of the defendant’s privilege against self-incrimination.
The statutory language is based on a constitutional
right, and its omission can never be harmless.’’4 State
v. Suplicki, supra, 33 Conn. App. 130. In so concluding,
the Appellate Court did not cite the language or legisla-
tive history of § 54-84 (b), but, rather, relied on a string
citation to four federal and state cases. See id., 130–31.
A brief review of those cases demonstrates, however,
that they do not support the proposition for which the
Appellate Court cited them, most notably the two
United States Supreme Court decisions, both of which
embrace harmless error review for significant constitu-
tional errors. See Arizona v. Fulminante, 499 U.S. 279,
310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (admission
of involuntary confession subject to harmless error
review); Rose v. Clark, 478 U.S. 570, 579–80, 106 S. Ct.
3101, 92 L. Ed. 2d 460 (1986) (instruction improperly
shifting burden of proof on malice subject to harmless
error review). The Appellate Court’s reliance in
Suplicki on its decisions in State v. Hamilton, 30 Conn.
App. 68, 76–78, 618 A.2d 1372 (1993), aff’d, 228 Conn.
234, 636 A.2d 760 (1994), and State v. Payne, 12 Conn.
App. 408, 413–15, 530 A.2d 1110 (1987), which held
that the trial court’s complete failure to instruct on an
essential element of the charged offense was not subject
to harmless error review; State v. Suplicki, supra, 131;
is now unpersuasive because that pair of cases is wholly
inconsistent with the United States Supreme Court’s
subsequent decision in Neder v. United States, 527 U.S.
1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), which
concluded that ‘‘the omission of an element is an error
that is subject to harmless-error analysis . . . .’’
The Appellate Court’s error in Suplicki, however,
is understandable when viewed in the context of this
court’s preceding decisions in State v. Burke, supra,
182 Conn. 330, and State v. Sinclair, supra, 197 Conn.
574. In Burke, this court held that it was plain error,
requiring reversal, when the trial court completely
failed to give the instruction mandated by § 54-84 (b);
the court simply did not consider whether any kind of
harmless error analysis was applicable in this context.
State v. Burke, supra, 332–34; see also State v. Carter,
182 Conn. 580, 580–81, 438 A.2d 778 (1980) (per curiam)
(companion case following Burke). Subsequently, in
Sinclair, this court determined that the complete fail-
ure to instruct pursuant to § 54-84 (b) was harmful
error, thus rendering it unnecessary to consider the
state’s claim that harmless error analysis is applicable
in such cases.5 State v. Sinclair, supra, 584–86. In dicta,
however, the court cited Burke and State v. Carter,
supra, 580, and observed that it had not previously
‘‘undertake[n] such an inquiry when we held that total
noncompliance with § 54-84 (b) constituted plain
error.’’ State v. Sinclair, supra, 585. The court further
observed in dictum that ‘‘[t]here is much to be said in
favor of a rule that violation of the mandate of § 54-84
(b) automatically requires a new trial,’’ stating that:
‘‘Indubitably, the legislature has the power to imple-
ment constitutional rights in a manner that is more
stringent than the constitution itself provides. In
enacting § 54-84 (b), the legislature has done so. While
the constitutional right to a ‘no adverse inference’
charge depends upon the defendant’s request of such
a charge, the statutory right is conferred upon the defen-
dant unconditionally, in the absence of his request that
the charge not be given. It would be entirely reasonable
to conclude that the principle of harmless error may
be inconsistent with the unconditional language of the
statute that the legislature has enacted for the protec-
tion of the right not to testify.’’6 (Footnote omitted.) Id.
In my view, this court should overrule the Appellate
Court’s decision in Suplicki, and our decisions in Sin-
clair and Burke, to the extent they stand for the proposi-
tion that a trial court’s failure to give the no adverse
inference instruction mandated by § 54-84 (b) is per se
plain error requiring reversal. Holding the doctrine of
harmless error inapplicable when a trial judge fails to
comply with § 54-84 (b) is not mandated by the statute’s
purpose and, further, is absolutely incompatible with
our entrenched plain error jurisprudence. Turning first
to the purpose of § 54-84 (b),7 I observe that it ‘‘statuto-
rily established a new procedure concerning the rights
of accused persons who choose to exercise their fifth
amendment right not to testify.’’ (Internal quotation
marks omitted.) State v. Tatem, 194 Conn. 594, 597–98,
483 A.2d 1087 (1984). The legislature enacted § 54-84
(b) in 1977 to address confusion created by this court’s
decision in State v. Branham, 171 Conn. 12, 17–18, 368
A.2d 63 (1976), which had held, in contravention of
the then prevailing federal case law, that a criminal
defendant was not constitutionally entitled to a ‘‘no
adverse inference’’ instruction, even upon request. See
20 S. Proc., Pt. 5, 1977 Sess., pp. 2068–69, remarks of
Senator Salvatore C. DePiano (discussing reaction and
confusion in state courts in wake of Branham); Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 4,
1977 Sess., pp. 1251–52, remarks of Attorney Jerrold
Barnett, Office of the Chief Public Defender (explaining
that Branham was minority position among state courts
and in conflict with federal decisions on point). Subse-
quent to the enactment of § 54-84 (b), the United States
Supreme Court decided Carter v. Kentucky, supra, 450
U.S. 305, which followed its decision on prosecutorial
comment in Griffin v. California, 380 U.S. 609, 614, 85
S. Ct. 1229, 14 L. Ed. 2d 106 (1965), and required judges
to protect a defendant’s assertion of the fifth amend-
ment privilege from the ‘‘toll’’ of undue juror speculation
by instructing juries, at the ‘‘proper request’’ of the
defendant, that they may not draw adverse inferences
from the defendant’s election not to testify. See State
v. Tatem, supra, 598–99.
I believe that we must view § 54-84 (b) through the
lens of the constitutional right that it seeks to effectuate,
namely, the right to a jury instruction embodied by
Carter v. Kentucky, supra, 450 U.S. 305. See State v.
Tatem, supra, 194 Conn. 599 (stating that ‘‘rationale [of
Carter v. Kentucky, supra, 305] is fully appropriate to
the application of the mandate of § 54-84 [b] to this
case’’); see also State v. Day, 233 Conn. 813, 851 n.32,
661 A.2d 539 (1995) (describing ‘‘constitutional under-
pinnings of § 54-84’’), overruled on other grounds by
State v. Connor, 292 Conn. 483, 517–18, 973 A.2d 627
(2009). Put differently, although the legislature provided
a greater protection for the right against self-incrimina-
tion than existed under this court’s constitutional juris-
prudence and, indeed, the United States Supreme
Court’s subsequent decision in Carter v. Kentucky,
supra, 288, it only addressed the substantive right,
rather than the appellate remedies available for the
violation of that right. See 20 H.R. Proc., Pt. 11, 1977
Sess., p. 4544, remarks of Representative Robert G.
Jaekle (discussing amendment to bill to make instruc-
tion automatic with opt-out, rather than dependent on
defendant’s request).
Thus, I find it instructive that all federal courts, and
the vast majority of state courts, that have considered
the issue hold that a trial court’s failure to give a no
adverse inference instruction when requested by a
defendant as set forth in Carter v. Kentucky, supra, 450
U.S. 300, is not structural error, but rather, is amenable
to harmless error review.8 See, e.g., United States v.
Whitten, 610 F.3d 168, 200–201 (2d Cir. 2010); id., 213–14
(Livingston, J., concurring in part and dissenting in
part); United States v. Soto, 519 F.3d 927, 930–31 (9th
Cir. 2008); Lewis v. Pinchak, 348 F.3d 355, 358–59 (3d
Cir. 2003), cert. denied, 540 U.S. 1200, 124 S. Ct. 1461,
158 L. Ed. 2d 117 (2004); Beathard v. Johnson, 177 F.3d
340, 350 (5th Cir.), cert. denied, 528 U.S. 954, 120 S. Ct.
380, 145 L. Ed. 2d 296 (1999); United States v. Burgess,
175 F.3d 1261, 1266–67 (11th Cir. 1999); United States
v. Brand, 80 F.3d 560, 568 (1st Cir. 1996), cert. denied
sub nom. Aponte-Velazquez v. United States, 519 U.S.
1077, 117 S. Ct. 737, 136 L. Ed. 2d 676 (1997); Hunter
v. Clark, 934 F.2d 856, 859–60 (7th Cir.) (en banc), cert.
denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 338
(1991); Finney v. Rothgerber, 751 F.2d 858, 864 (6th
Cir.), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L.
Ed. 2d 310 (1985); Burns v. State, 699 So. 2d 646, 651–52
(Fla. 1997), cert. denied, 522 U.S. 1121, 118 S. Ct. 1063,
140 L. Ed. 2d 123 (1998); Parker v. State, 425 N.E.2d
628, 630 (Ind. 1981); State v. Griffin, 576 N.W.2d 594,
597 (Iowa 1998); James v. Commonwealth, 679 S.W.2d
238, 239 (Ky. 1984), cert. denied, 470 U.S. 1086, 105 S.
Ct. 1849, 85 L. Ed. 2d 147 (1985); Richardson v. State,
402 So. 2d 848, 852 (Miss. 1981); State v. Storey, 986
S.W.2d 462, 464 (Mo.), cert. denied, 528 U.S. 895, 120
S. Ct. 226, 145 L. Ed. 2d 189 (1999); Franklin v. State,
98 Nev. 266, 270, 646 P.2d 543 (1982); State v. Camacho,
218 N.J. 533, 551–52, 95 A.3d 635 (2014); White v. State,
779 S.W.2d 809, 828 (Tex. Crim. App. 1989), cert. denied,
495 U.S. 962, 110 S. Ct. 2575, 109 L. Ed. 2d 757 (1990).
The authorities that I have found holding to the con-
trary, from Alabama, Pennsylvania, and New York, lack
persuasive value because they are either conclusory or
predated and, therefore, do not consider the develop-
ment of harmless error jurisprudence under Carter v.
Kentucky, supra, 450 U.S. 288. See Perry v. State, 368
So. 2d 310, 312 (Ala. 1979) (holding that under Ala. Code
§ 12-21-220 [1975], ‘‘[s]ubjective analysis on a case-by-
case basis, to determine whether such error has
affected the substantial rights of the accused, has no
field of operation where, as here, the denial of the
requested instruction is tantamount to the denial of the
fundamental right of the accused, as constitutionally
and statutorily mandated, to elect not to testify’’);
Turner v. State, 924 So. 2d 737, 774 (Ala. Crim. App.
2002) (urging Alabama Supreme Court to reconsider
Perry v. State, supra, 310, as outdated in ‘‘light of the
abundant [case law] in other jurisdictions’’), cert.
denied, 547 U.S. 1056, 126 S. Ct. 1653, 164 L. Ed. 2d 399
(2006); Commonwealth v. Lewis, 528 Pa. 440, 453, 598
A.2d 975 (1991) (holding that failure to give no adverse
inference instruction is per se reversible under state
constitution, but failing to explain why violation of Car-
ter v. Kentucky, supra, 288, is structural in nature);
People v. Britt, 43 N.Y.2d 111, 113–15, 371 N.E.2d 504,
400 N.Y.S.2d 785 (1977) (holding that failure to give no
adverse inference instruction required by N.Y. Crim.
Proc. Law § 300.10 [2] is reversible error per se because
of ‘‘mandatory language of the statute, coupled with
the fundamental importance of the right it protects,’’
but relying on Bruno v. United States, 308 U.S. 287,
294, 60 S. Ct. 198, 84 L. Ed. 257 [1939], which predated
modern harmless error jurisprudence).
In contrast to the unpersuasive decisions of those
courts following the minority approach, those courts
adopting the majority approach reason that a trial
court’s ‘‘failure to give a requested . . . instruction’’
pursuant to Carter v. Kentucky, supra, 450 U.S. 288, is
not a structural error ‘‘for which an assessment of the
evidence is unsuitable precisely because it concerns
the evidentiary value the jury may give to a defendant’s
election not to testify on his own behalf.’’9 United States
v. Brand, supra, 80 F.3d 568. Thus, in the absence of
any statutory language or legislative history suggesting
that automatic reversal is the legislature’s desired rem-
edy for the court’s failure to give the instruction man-
dated by § 54-84 (b), I would not impute to the
legislature any desire to render such omissions struc-
tural error per se, because that extraordinary appellate
remedy is reserved for a very limited class of constitu-
tional claims in which the fairness in the proceedings
is shaken given the unquantifiable nature of the error.
See, e.g., State v. Lopez, 271 Conn. 724, 733–34, 859
A.2d 898 (2004); see also United States v. Gonzalez-
Lopez, 548 U.S. 140, 149–50, 126 S. Ct. 2557, 165 L. Ed.
2d 409 (2006) (structural errors include: [1] complete
denial of counsel; [2] denial of right of self-representa-
tion; [3] denial of right to public trial; [4] denial of right
to trial by jury by giving of defective reasonable doubt
instruction; and [5] denial of right to counsel of choice).
Moreover, the notion of per se reversibility for failure
to instruct under § 54-84 (b) is wholly inconsistent with
the plain error doctrine, which, ‘‘codified at Practice
Book § 60-5, is an extraordinary remedy used by appel-
late courts to rectify errors committed at trial that,
although unpreserved, are of such monumental propor-
tion that they threaten to erode our system of justice and
work a serious and manifest injustice on the aggrieved
party. [T]he plain error doctrine . . . is not . . . a rule
of reviewability. It is a rule of reversibility. That is, it
is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, none-
theless requires reversal of the trial court’s judgment,
for reasons of policy. . . . In addition, the plain error
doctrine is reserved for truly extraordinary situations
[in which] the existence of the error is so obvious that
it affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernable on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record.
‘‘Although a complete record and an obvious error
are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n
addition to examining the patent nature of the error,
the reviewing court must examine that error for the
grievousness of its consequences in order to determine
whether reversal under the plain error doctrine is appro-
priate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will
result in manifest injustice. . . . In State v. Fagan, [280
Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549
U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)], we
described the two-pronged nature of the plain error
doctrine: [An appellant] cannot prevail under [the plain
error doctrine] . . . unless he demonstrates that the
claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) State v. Sanchez, 308 Conn.
64, 76–78, 60 A.3d 271 (2013). The second prong of the
plain error test sets a ‘‘stringent standard’’ that ‘‘will be
met only upon a showing that, as a result of the obvious
impropriety, the defendant has suffered harm so griev-
ous that fundamental fairness requires a new trial.’’
State v. Jamison, 320 Conn. 589, 599, 134 A.3d 560
(2016).
On this point, I find instructive this court’s recent
decisions in State v. Sanchez, supra, 308 Conn. 64, and
State v. Myers, 290 Conn. 278, 963 A.2d 11 (2009). In
Sanchez, this court held that reversal under the plain
error doctrine was not warranted in the absence of a
showing of harm when a trial court failed to give an
instruction with respect to eyewitness identification
pursuant to State v. Ledbetter, 275 Conn. 534, 575, 881
A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct.
1798, 164 L. Ed. 2d 537 (2006).10 State v. Sanchez, supra,
80, 83–84. In Myers, this court held similarly with
respect to a trial court’s failure to obtain a plea or
conduct a trial in accordance with Practice Book § 42-
2, prior to sentencing a defendant as a repeat offender
under General Statutes § 21a-277 (a). State v. Myers,
supra, 290–91. The court in Sanchez, citing the holding
in State v. Myers, supra, 290, that a ‘‘ ‘trial court’s failure
to comply with a rule of criminal procedure, without
more, is insufficient to require reversal for plain error’ ’’;
[emphasis omitted] State v. Sanchez, supra, 81; further
observed that, ‘‘[t]o find plain error without regard to
the evidence in the case would be inconsistent with the
requirement of showing manifest injustice. For exam-
ple, if evidence unaffected by the omitted instruction
included multiple reliable confessions by the defendant
and DNA evidence conclusively linking the defendant
to the crime, it would be exceedingly difficult to justify
a conclusion that the patent error so affected the fair-
ness and integrity of and public confidence in the judi-
cial proceedings as to require reversal of the judgment.
Indeed, in the absence of a circumstance like structural
error, which defies harmless error analysis . . . we are
unaware of a framework under which this court would
reverse a criminal conviction without considering the
harmfulness of the impropriety in light of the entire
case.’’11 (Citation omitted.) Id., 84; see also State v. Jam-
ison, supra, 320 Conn. 600–601 (court, in determining
whether failure to give accomplice credibility instruc-
tion was reversible under plain error doctrine, could
not conclude that omission was so harmful as to result
in manifest injustice). I view the supervisory rule and
rule of practice at issue in Sanchez and Myers as indis-
tinguishable in nature from § 54-84 (b), as all are prophy-
lactic measures intended to protect independent
constitutional rights.12 See State v. Sanchez, supra, 80
(describing Myers as instructive because ‘‘plain error
question was raised in the context of the trial court’s
failure to comply strictly with a rule of practice intended
to protect a defendant’s right to due process’’).
Accordingly, I conclude that a trial court’s failure to
give the instruction required by § 54-84 (b) is not some
unique species of plain error requiring reversal without
regard to the manifest injustice caused by the omission,
as embodied by the harmfulness of the error. This is
particularly so given the statute’s ‘‘constitutional under-
pinnings,’’ which necessarily encompass an inquiry into
whether the state has proven the error harmless beyond
a reasonable doubt.13 State v. Day, supra, 233 Conn.
851 n.32; see, e.g., State v. Yurch, 229 Conn. 516, 523,
641 A.2d 1387 (‘‘when a statutory violation implicates
the defendant’s constitutional right against self-incrimi-
nation . . . it is the state’s burden to prove harm-
lessness beyond a reasonable doubt’’ [citation
omitted]), cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130
L. Ed. 2d 343 (1994). Thus, I would not find reversible
plain error arising from the failure to instruct in accor-
dance with § 54-84 (b) without first conducting ‘‘an
examination of the particular facts in the case to deter-
mine whether the consequence of the omission has
resulted in manifest injustice to the defendant,’’ which
includes consideration of ‘‘whether the substantive con-
cern underlying the instruction otherwise had been
brought to the jury’s attention’’ and ‘‘whether there is
independent evidence of the defendant’s guilt.’’ State
v. Sanchez, supra, 308 Conn. 82.
II
I now turn to whether the state proved beyond a
reasonable doubt that the trial court’s failure to instruct
the jury in accordance with § 54-84 (b) was harmless
error. Given the overwhelming evidence in this case,
and with the inconsistencies cited by the majority being
ultimately irrelevant to the central question before the
jury, I conclude that the trial court’s failure to provide
a no adverse inference instruction pursuant to § 54-84
(b) was harmless error.
Although much of the evidence is circumstantial, it
is as overwhelming as the apocryphal morning snow
on the ground. See, e.g., State v. Perkins, 271 Conn.
218, 246, 856 A.2d 917 (2004) (‘‘Moreover, it does not
diminish the probative force of the evidence that it
consists, in whole or in part, of evidence that is circum-
stantial rather than direct. . . . It is not one fact, but
the cumulative impact of a multitude of facts which
establishes guilt in a case involving substantial circum-
stantial evidence.’’ [Internal quotation marks omitted.]).
The present case involved a theft of power tools and
wire from a shed in the backyard of Donald Gennette
and Maria Gennette; the backyard of their property was
an open space that abutted the property lines of their
neighbors on either side, Thomas Blake and Ricardo
Gallo. Specifically, multiple witnesses, including Gallo
and Maria Gennette, were familiar with the defendant
and his vehicle, a red Toyota Corolla, because he rented
a basement apartment in Blake’s home. Gallo and Maria
Gennette testified that, on May 5, 2011, they saw the
defendant’s red Toyota Corolla parked immediately
next to the property line between the Gennette and
Blake properties. The vehicle had been backed in so
that it was facing the street, in close proximity to the
shed on the Gennettes’ property. Gallo saw the vehicle
at approximately 2 p.m., and Maria Gennette saw it
between 11:30 a.m. and 12 p.m., after she had returned
home from work. Maria Gennette testified that she had
never seen the defendant’s vehicle parked in that partic-
ular spot before. Even more unusual, the defendant’s
girlfriend engaged Maria Gennette in a conversation
when she passed by, which had never happened in the
nine months that the defendant and his girlfriend lived
next door. Later that afternoon, around 2 p.m., Gallo
saw the defendant enter the Gennettes’ unlocked shed,
remove items including a circular saw, a yellow chop
saw, and a large portion of wire, and place them into
the trunk of the Corolla. The very next day, the defen-
dant went to a scrap yard in New Haven, where he
provided photographic identification in order to sell a
quantity of wire, for which he received $65. The wire
that the defendant sold was consistent with the wire
that had been reported stolen.14
I conclude that the cumulative strength of the evi-
dence in this case renders it distinguishable from State
v. Dudla, 190 Conn. 1, 458 A.2d 682 (1983), on which
the majority relies heavily for the proposition that the
failure to give a no adverse inference charge was harm-
ful because the jury might have considered the defen-
dant’s failure to testify in deciding to credit the
testimony at trial.15 Dudla is inapposite because it
depended on the uncorroborated testimony of one wit-
ness, albeit a police officer, who testified that the defen-
dant had thrown a gun on the grass during a routine
traffic stop; that was the ‘‘only evidence offered to link
the defendant to the weapon, the possession of which
is the basis of his conviction.’’ (Emphasis added.) Id.,
7. In contrast, in the present case, Gallo’s eyewitness
testimony about the theft itself was bolstered by the
other circumstantial evidence, including Maria Gennet-
te’s testimony about the unusual location of the defen-
dant’s vehicle near their shed, the unusual friendliness
of the defendant’s girlfriend toward Maria Gennette
when she approached the defendant’s vehicle, and the
defendant’s sale of a large quantity of wire on the very
next day.
Finally, I note that the state’s closing arguments
treaded nowhere near mentioning the defendant’s fail-
ure to testify; see, e.g., Griffin v. California, supra, 380
U.S. 615; and the trial court’s instructions emphasized
the presumption of innocence and the burden of proof,
in particular emphasizing, with respect to the alibi
defense, the state’s responsibility to prove that the
defendant was at the scene, that the ‘‘defendant does
not have to prove his claim that he was elsewhere,’’
and that it is ‘‘sufficient if, on considering all the evi-
dence there arises in your mind a reasonable doubt as
to the defendant’s presence at the scene of the crime
when it was committed.’’ The protective effect of these
general instructions,16 combined with the overwhelming
evidence against the defendant, leaves me convinced
beyond a reasonable doubt that the trial court’s failure
to instruct the jury in accordance with § 54-84 (b) did
not affect the verdict in this case. See Hunter v. Clark,
supra, 934 F.2d 860–61 (failure to give no adverse infer-
ence instruction did not affect verdict in bank robbery
trial given positive eyewitness identification of defen-
dant, testimony of witnesses placing defendant with
other robbers shortly before and after crime, and testi-
mony that defendant took lead role in dividing proceeds
after robbery); State v. Griffin, supra, 576 N.W.2d
597–98 (failure to give no adverse inference instruction
was harmless error in gang sexual assault case when
victim’s identification of defendant was consistent and
‘‘unequivocal’’ because she was very familiar with him,
another perpetrator identified defendant, and DNA evi-
dence did not exclude him); Richardson v. State, supra,
402 So. 2d 852 (failure to give no adverse inference
instruction considered harmless because ‘‘identifica-
tion of appellant as the burglar and his guilt of the crime
were proved beyond reasonable doubt by overwhelm-
ing evidence’’); State v. Camacho, supra, 218 N.J. 554–55
(failure to give no adverse inference instruction harm-
less error in car theft case given instructions on burden
of proof and ‘‘overwhelming evidence that [the] defen-
dant was the driver of the blue Audi when it eluded
police,’’ including identifications by multiple police offi-
cers, one of which took place when officer arrested
defendant upon exiting stolen car). Accordingly, I con-
clude that the manifest injustice necessary to trigger
reversal under the plain error doctrine simply is absent
in this case.
Because I would reverse the judgment of the Appel-
late Court and reinstate the judgment of conviction, I
respectfully dissent.
1
General Statutes § 54-84 provides: ‘‘(a) Any person on trial for crime
shall be a competent witness, and at his or her option may testify or refuse
to testify upon such trial. The neglect or refusal of an accused party to
testify shall not be commented upon by the court or prosecuting official,
except as provided in subsection (b) of this section.
‘‘(b) Unless the accused requests otherwise, the court shall instruct the
jury that they may draw no unfavorable inferences from the accused’s failure
to testify. In cases tried to the court, no unfavorable inferences shall be
drawn by the court from the accused’s silence.’’
2
I agree with the statement of the background facts and procedural history
set forth in the majority’s opinion.
3
See, e.g., State v. Ruocco, supra, 151 Conn. App. 744; State v. Stewart,
60 Conn. App. 301, 310, 759 A.2d 142, cert. granted and remanded for recon-
sideration, 255 Conn. 913, 763 A.2d 1039 (2000) (appeal withdrawn October
1, 2001); State v. Cruz, 59 Conn. App. 426, 430, 757 A.2d 74, cert. denied,
254 Conn. 947, 762 A.2d 904 (2000).
4
Claims that a trial court’s instructions, as given, did not satisfy § 54-84
(b) have been reviewed, however, for harmless error, to determine whether
it was reasonably possible that the noncompliant charge misled the jury.
See, e.g., State v. Townsend, 206 Conn. 621, 624–26, 539 A.2d 114 (1988);
State v. Miller, 34 Conn. App. 250, 258–61, 641 A.2d 400, cert. denied, 230
Conn. 902, 644 A.2d 916 (1994).
5
Citing Carter v. Kentucky, supra, 450 U.S. 304, and State v. Cohane, 193
Conn. 474, 484, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83
L. Ed. 2d 331 (1984), the court also noted that, in the purely constitutional
context ‘‘arising out of failure to give a ‘no adverse inference’ instruction,
we expressly reserved the question whether noncompliance with so central
an aspect of the privilege against self-incrimination could ever be considered
harmless error.’’ State v. Sinclair, supra, 197 Conn. 585.
6
Concurring separately, Justice Shea characterized the majority’s dictum
eschewing harmless error review in cases of complete omissions of ‘‘ ‘no
adverse inference’ ’’ instructions as ‘‘wholly superfluous.’’ State v. Sinclair,
supra, 197 Conn. 587. Justice Shea observed that the ‘‘sentence, though
equivocal, is likely to be construed as an intimation that this court will not
apply the harmless error principle to an inadvertent failure of the trial court,
inculpating also counsel for the state and for the defendant who neglect to
call attention to the matter, to give the ‘no adverse inference’ instruction
mandated by . . . § 54-84 (b).’’ Id. Emphasizing that the record rendered
it unnecessary to decide the issue, Justice Shea responded to the majority’s
dictum by ‘‘express[ing his] great reluctance to fashion another automatic
reversal rule that would impose on the judicial system of this state the
burden of a new trial no matter how overwhelming the evidence of guilt
may be.’’ Id.
7
That there has been some division among our state’s appellate judges
about whether a complete omission is per se plain error requiring reversal
suggests to me that there is more than one reasonable way to read the
statute, thus rendering resort to extratextual sources appropriate under § 1-
2z. Compare State v. Sinclair, supra, 197 Conn. 587 (Shea, J., concurring),
with id., 585, and State v. Suplicki, supra, 33 Conn. App. 130.
8
The United States Supreme Court has expressly declined to decide this
question. See James v. Kentucky, 466 U.S. 341, 351–52, 104 S. Ct. 1830, 80
L. Ed. 2d 346 (1984); Carter v. Kentucky, supra, 450 U.S. 304.
9
In holding that a violation of Carter v. Kentucky, supra, 450 U.S. 288,
which is passive in nature insofar as it concerns an omission, is amenable
to harmless error analysis, the United States Court of Appeals for the Third
Circuit observed in Lewis v. Pinchak, supra, 348 F.3d 358–59, that comments
by a prosecutor affirmatively urging jurors to draw adverse inferences from
failures to testify, or a jury instruction authorizing such inferences, in viola-
tion of Griffin v. California, supra, 380 U.S. 609, are subject to review for
harmless error. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967); see also United States v. Hasting, 461 U.S. 499,
503, 510–11, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (state proved error,
based on prosecutorial comments in violation of Griffin v. California, supra,
609, arising from defendants’ failure to offer evidence, harmless beyond
reasonable doubt). The Third Circuit ‘‘perceive[d] no material distinction
between prosecutorial comment cases and failure to instruct cases in terms
of their susceptibility to a quantitative assessment of trial evidence’’; Lewis
v. Pinchak, supra, 359; observing that ‘‘[t]he same constitutionally protected
interest is at stake when there is a Carter [v. Kentucky, supra, 288] violation
and, if anything, the jeopardy to that interest is greater when a prosecutor
improperly comments on a defendant’s failure to testify. A prosecutor’s
comment on a defendant’s decision not to testify affirmatively places the
inference of guilt before the jury, while the failure to instruct the jury only
creates the possibility that the jury will, on its own, draw an inference of
guilt.’’ (Emphasis added.) Id., 358.
10
‘‘In State v. Ledbetter, [supra, 275 Conn. 575], this court determined
that, because of an increased risk of misidentification when an eyewitness
is not advised that the perpetrator of a crime may or may not be present
in the identification procedure, we would exercise our supervisory authority
to require trial courts to provide an instruction to the jury regarding this
risk in cases in which the identification procedure administrator had failed
to provide such a warning, unless no significant risk of misidentification
existed . . . .’’ State v. Sanchez, supra, 308 Conn. 66–67.
11
I note that the United States Court of Appeals for the First Circuit has
held similarly with respect to whether a trial court’s failure to comply with
Carter v. Kentucky, supra, 450 U.S. 288, is ‘‘plain’’ error and ‘‘affect[ed]
substantial rights’’; United States v. Olano, 507 U.S. 725, 736–37, 113 S. Ct.
1770, 123 L. Ed. 2d 508 (1993); and has engaged in a harmlessness analysis
with respect to whether an unpreserved error of a violation of Carter v.
Kentucky, supra, 288, warranted reversal under the federal plain error rule,
rule 52 (b) of the Federal Rules of Criminal Procedure. See United States
v. Brand, supra, 80 F.3d 567–68; see also United States v. Medina-Martinez,
396 F.3d 1, 9–10 (1st Cir.) (failure to give instruction pursuant to Carter v.
Kentucky, supra, 288, not plain error because jury instructions covered
presumption of innocence and burden of proof and court was ‘‘confident
that the evidence . . . would have resulted in a guilty verdict irrespective
of the instructional error’’), cert. denied, 544 U.S. 1007, 125 S. Ct. 1955, 161
L. Ed. 2d 786 (2005).
12
I recognize that in Sanchez this court rejected the defendant’s reliance
on State v. Burke, supra, 182 Conn. 331–32, for the proposition that a showing
of harm is not required for plain error reversal given failure to comply with
a criminal procedure rule. The court described Burke as limited to ‘‘a statute
enacted to overrule holdings by this court and to effectuate a fundamental
right . . . .’’ State v. Sanchez, supra, 308 Conn. 81 n.7. I would not give this
aspect of Burke even the limited credence that this court did in Sanchez,
and I deem it not authoritative on this point because it does not appear
that the harm question was even raised, let alone considered with respect
to plain error reversal. I view the court’s analysis in Burke as nothing more
than an oversight insofar as it fails to accommodate for the contours of the
plain error doctrine. See State v. Myers, supra, 290 Conn. 290 n.10 (criticizing
Jacqueline Properties, LLC v. Gartrell, 101 Conn. App. 6, 919 A.2d 1059,
cert. denied, 283 Conn. 907, 927 A.2d 918 [2007], as suggesting that violation
of trial procedure statute is subject to per se reversal under plain error
doctrine).
13
It bears emphasis that ‘‘application of a harmless error analysis is consis-
tent with the basic tenets and goals of our adversarial system of criminal
justice. Indeed, the appellate harmless error doctrine is rooted in [a] funda-
mental purpose of our criminal justice system—to convict the guilty and
acquit the innocent. The harmless error doctrine recognizes the principle
that the central purpose of a criminal trial is to decide the factual question
of the defendant’s guilt or innocence . . . and promotes public respect for
the criminal process by focusing on the underlying fairness of the trial rather
than on the virtually inevitable presence of immaterial error.’’ (Citation
omitted; internal quotation marks omitted.) State v. Yurch, 229 Conn. 516,
523 n.6, 641 A.2d 1387, cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed.
2d 343 (1994).
14
After the defendant learned from Blake that Donald Gennette suspected
him in the theft, the defendant denied involvement in the theft, but aban-
doned his apartment and possessions in Blake’s house. The defendant asked
Blake to meet him that evening at a nearby Burger King restaurant to bring
him some medications from the apartment.
15
The majority also cites inconsistencies in Donald Gennette’s testimony
about the amount of wire that was taken, which the defendant used to
support his argument at trial that there was reasonable doubt about whether
he was at the scene and as to what, if anything, was taken. This is consistent
with the defendant’s theory of the case, which was that Donald Gennette
and Gallo lied to the police about the burglary in order to defraud the
Gennettes’ homeowners insurance company, and that if there was in fact
a theft, Gallo—who was unemployed, home during the day, and knew the
contents of the Gennettes’ shed—had the motive and the opportunity to
be the thief. None of these inconsistencies cast doubt, however, on the
identification of the defendant as the person who had parked his vehicle
in an unusual location near the shed, took items from the shed, and then sold
wire consistent with that taken from the shed on the day after the burglary.
Further, the majority relies more on the defendant’s alibi witness than
the defendant himself did, as the defendant spent virtually all of his closing
argument at trial attempting to discredit the testimony of the state’s wit-
nesses, and made only one isolated reference to the alibi witness, thus
suggesting that alibi was not a major strategic focus for the defense. This was
for good reason. As the prosecutor emphasized during rebuttal argument, the
testimony of the alibi witness was shaky at best, insofar as he testified that
the defendant was with him at his auto body repair shop the entire time
during the day of the burglary, but he could not remember whether the
defendant’s girlfriend was present the entire time, what she did while she
was at the body shop, and when she had left.
16
During voir dire, the trial court instructed the venirepersons that the
‘‘defendant has no obligation to put on any evidence at all. He doesn’t have
to put on any evidence and he doesn’t have to take the stand. And if he
chooses not to take the stand or not to put on any evidence, you as a juror
are not to hold that against him because those are his rights.’’ Although the
trial court’s subsequent preliminary instructions prior to the start of evidence
included a discussion of the burden of proof and the fact that the defendant
may present evidence, but is not obligated to, they did not provide a specific
‘‘no adverse inference’’ admonition. I do not consider the voir dire instruc-
tions in my analysis because I recognize that preliminary instructions, includ-
ing those during jury selection prior to the actual commencement of the
trial, have been held insufficient to satisfy the court’s obligations under § 54-
84 (b). See State v. Hicks, 97 Conn. App. 266, 276–77, 903 A.2d 685, cert.
denied, 280 Conn. 930, 909 A.2d 958 (2006).